Love’s labour lost: The Valuation Paradox of Unpaid Domestic Work in Indian Family Law

*Vertika Kashyap

“They say it is love. We say it is unwaged work … By denying housework a wage and transforming it into an act of love, capital has killed many birds with one stone.”

-        Silvia Federici, Wages against housework

There is a strange lop – sidedness clutched deep in Indian family law. When a homemaker dies in a car accident, the courts quantify economic value of the labour she performed throughout her life in rupees. This labour encompasses the acts that sustain a home including child rearing, cooking, cleaning, and the countless other tasks involved in managing a household. The courts then award compensation to the deceased's family for the loss resulting from the death. In contrast, if the same homemaker survives and seeks a divorce, the same legal system refuses to recognise that labour as creating any proprietary entitlement. She isn’t given rights in the matrimonial property that her unpaid labour helped build.  Moreover, she has to prove the urgency and actual need to claim maintenance which is a mere consolation that can never truly substitute for a woman’s entitlement to equitable share in the matrimonial home.

This is not an inadvertent convergence but a legal paradox that exposes how the law inherently views the contribution of a woman’s unpaid labour in her marriage. This paper seeks to establish how this valuation paradox is not merely a doctrinal inconsistency, but a structural feature of the Indian family law reflecting entrenched patriarchal and capitalist notions. Henceforth, laying down that only a statutory, contribution-based matrimonial property regime can resolve it.

The Paradox Stated: What Tort Law Already Concedes

Indian tort jurisprudence has evolved over the last two decades, moving decisively towards recognising the economic value of unpaid domestic work.  In Lata Wadhwa v. State of Bihar, the Supreme Court assigned ‘notional income’ to the services rendered by the deceased homemakers while calculating the compensation payable to their dependants. Notional income refers to a judicially estimated monetary value assigned to a work that does not generate formal wealth or income. The reasoning behind this, fortified the claim that a homemaker’s labour cannot be treated as economically worthless merely because they were unpaid. Furthermore, in Arun Kumar Agrawal v. National Insurance Co. Ltd., the Supreme Court explicitly criticised exclusion of housework from national income accounting and calling out the undervaluation of women’s domestic contribution as a matter of “genuine survey and assessment.”

Most significantly, in Kirti v. Oriental Insurance Co. Ltd., the Supreme Court (per Dr. D.Y. Chandrachud J.) rejected the long-standing assumption that a homemaker’s labour is economically worthless and held that that a notional income, based on the applicable minimum wages, should be assigned to a deceased homemaker’s work while determining compensation under the Motor Vehicles Act, 1988. 

The court in above mentioned precedents, has recognized that unpaid domestic labour is productive and economically valuable. However, this recognition does not appear to extend to family court proceedings where domestic labour receives limited consideration in determining financial relief which is discussed in the next section.

Unpaid Domestic Labour and the Limits of Family Law

Maintenance remains a need-based remedy rather than a proprietary entitlement. The rationale underlying Section 144 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (earlier Section 125 of the Code of Criminal Procedure, 1973) was to prevent vagrancy and destitution among abandoned and divorced wives instead of redistributing wealth earned jointly through paid and unpaid labour.

Similarly, Section 25 of the Hindu Marriage Act, 1955 directs courts to consider “the income and property of the applicant and respondent,” while determining permanent alimony. This approach primarily focuses on the financial circumstances of the parties rather than expressly recognising wife’s contribution, including unpaid labour, to the accumulation of the matrimonial resources. 

This distinction is significant because treating maintenance merely as a means of preventing financial hardships risks reducing the economically weaker spouse to the position of a dependent rather than recognising their contribution to the household’s wellbeing. Moreover, a spouse who withdraws from or limits paid economic work to undertake childcare and domestic responsibilities incur substantial opportunity costs including loss of income, professional growth, savings and social security benefits among many others. Consequently, the absence of a direct mechanism for valuing such labour can produce an apparent neutrality in matrimonial law which reproduces existing economic disparities.

In Rajnesh v. Neha, the Supreme Court took a meaningful step by recognising that “sacrifices made in the interest of the family” should be weighed while fixing maintenance. This framing is charitable because it interprets the sacrifice as a voluntary service rather than as a rightful claim. Justice operates on reciprocal rights and duties. However, Charity works on supererogation and is concerned with benefits that are conferred beyond what is morally or legally owned. Accordingly, the Court's use of the word ‘sacrifice’ may inadvertently impose a charitable framing by portraying unpaid domestic labour as an act of selflessness rather than recognising it as a basis of legal entitlement. Consequently, the recognition does not turn into a proprietary claim over matrimonial assets and remains subjected to judicial decision with no statutory formula as that adopted in Kirti.

The Protection of Women from Domestic Violence, 2005 was a genuine advance in naming “economic abuse” as a form of violence under Section 3, Explanation I (iv) of the Act. It covers the deprivation of financial resources as well as the right to reside in a shared household. The Act’s economic relief provisions are merely compensatory in nature to prevent dispossession. They do not determine what share of the household’s accumulated assets a woman is entitled to because of the labour she performed. The Act protects a woman’s right to reside in the home; however, it does not recognise her as a co-builder of the wealth within it.

Perhaps most tellingly, Indian family law, barring Goa as the sole exception, has no default matrimonial property regime. Assets typically remain in the name of the purchaser, which in the given patriarchal setup is most often the husband. According to NFHS data only 13 percent of women have a sole ownership of their house. The Marriage Laws (Amendment) Bill was passed by the Rajya Sabha in 2010. Unfortunately, allowed to lapse, the law had proposed a compensation mechanism which was tied to a wife’s share in immovable matrimonial property upon divorce on the ground of irretrievable breakdown. The lapse was mainly attributed to its concerns about opening floodgates of litigation and disputes over ancestral property. Consequently, India squandered its one legislative opportunity to formally recognise non-financial contribution as a basis for a proprietary right. Goa, being a fortunate exception, is governed by Portuguese Civil Code of 1867. The provisions establish a default “communion of assets” regime. It refers to a regime in which all property acquired during the marriage is presumed to be part of the joint matrimonial estate. It has demonstrated that a contribution based joint ownership of matrimonial assets is neither culturally alien to India nor domestically un- administrable.

 Feminist Perspectives on unpaid labour and economic entitlement

Feminist scholars have provided vocabulary to this paradox; Fraser’s theory on division between redistribution (of resources) and recognition (of status and identity) best illustrates this concept. India’s tort law has however progressed towards recognising the dire economic reality of unpaid domestic labour of women, the acknowledgement largely remains very symbolic in nature. There is no potent implementation model to execute the proprietary right that a woman is rightfully entitled to. Consequently, her labour is only validated symbolically and has no actionable claim. 

This does not exist in vacuum and has a long sociological history. In Social Reproduction Theory, labour is portrayed as only the paid market work and it is done so in order to secure a deliberate free economic subsidy for capital and the state. The deeply intertwined patriarchal capitalist state at play naturalises the domestic work as “labour of love” or a moral duty.  As popularised through the historical Wages for Housework Campaign Archive, this enables the market to externalise the costs of maintaining households and reproducing the workforce onto women. Society benefits from this unpaid labour, yet does not grant women their independent monetary entitlement.

Three objections deserve serious engagement. First, that a contribution-based property regime would open the “floodgates” of litigation and complicate valuation of unpaid domestic labour. While this is a real administrative concern it is not a reason to abandon the project. Courts have already performed comparably complex valuations in Kirti and its subsequent judgements using minimum-wage benchmarks and Time Use Survey data. The same methodology with more nuance can be transposed in matrimonial property division.

Second, one would argue that legislating on property would risk eroding marriage as a sacred institution and commodify the same. However, it must be kept in mind that this objection assumes that viewing labour as labour destroys its emotional meaning, which is already refuted by feminist scholars on substantive economic and political arguments.

Third, that the existing maintenance laws, especially post-Rajnesh, already achieves rough justice through judicial discretion. Yet, the same discretion is problematic when it exists without a solidified statutory entitlement. It risks being unequal as the judgement would vary with the judges hearing the case, the region in which it is decided and the woman’s ability to litigate.

Towards Reform

Three concrete steps would close the paradox which quantifies a homemaker’s unpaid labour   and compensates her heirs for its loss after death, but refuses to recognises the same labour as creating any proprietary entitlement in her matrimonial property. First, Parliament should revive and enact a version of the lapsed Bill. It would establish a statutory presumption of equal contribution-weighted division of assets acquired during marriage, modelled on Goa’s existing Communion of Assets model.

Second, maintenance guidelines under Section 144 BNSS and Section 25 HMA should be amended requiring courts to apply a notional-income methodology analogous to Kirti, using Time Use Survey benchmarks so that maintenance amount also keeps in the contribution of unpaid labour and not just the lifestyle of the husband.

Third, the definition of “economic abuse” under the Domestic Violence Act should explicitly include when a woman is denied shares in the economic assets she helped in building through her unpaid labour. 

Conclusion

The foregoing analysis demonstrates that Indian legal system possess the conceptual and methodological tools to assign economic value to unpaid work. Tort law has demonstrated that courts can quantify domestic labour from Wadhwa to Kirti. The inconsistency, therefore, does not lie in Law’s incapacity to value domestic labour but in its reluctance to extend the same rationale to family law.

Until the suggested reforms are taken, the legal recognition of unpaid labour is likely to remain uneven. Although Indian Courts have increasingly acknowledged its economic value, that recognition will continue to be more robust in compensation claims than in the determination of proprietary rights upon dissolution of marriage.

*Vertika Kashyap is a second- year law student pursuing B.A. LL.B.(Hons.) at Chanakya National Law University, Patna.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.